IN
THE UNITED STATES COURT OF APPEAL

FOR
THE NINTH CIRCUIT

_

PETER
McWILLIAMS

Appellant/Defendant

v.

UNITED
STATES OF AMERICA,

Appellee/Plaintiff

_

APPELANT’S
MOTION FOR REVIEW OF THE DISTRICT COURT’S ORDER DENYING MODIFICATION OF
CONDITIONS OF RELEASE PENDING TRIAL

THOMAS
J.BALLANCO

8581
Santa Monica Blvd. # 468

Los
Angeles, California 90069

(310)
291-3659

Attorney
for Appellant/Defendant

PETER
McWILLIAMS

PROCEDURAL HISTORY

On July 23, 1998, Peter McWilliams was taken into custody pursuant to a
Grand Jury indictment. He remained in custody until August 19, 1998, when he was
released on a two hundred fifty thousand-dollar bond secured by the deeds to his
mother's house and his brother's house. His release was subject to certain
mandatory conditions, including that he not violate any local, state or federal
laws and additional discretionary conditions specifically providing, "No
Marijuana Usage." Mr. McWilliams has and is complying with his conditions
of release even though medical marijuana usage is a critical component of his
treatment regimen for AIDS. He used medical marijuana successfully, under his
doctor's supervision, for more than two years as an
anti-nausea medication. The state-of-the-art prescription medication that Mr.
McWilliams must take to treat his AIDS has as a side-effect severe nausea that
often causes him to vomit the medication before it can be fully assimilated by
his body.

In October 1998, Mr. McWilliams first learned that his T-cell count had
dropped and his viral load had risen substantially.

[Footnote
1: T-cells are primary immunity agents
produced by the human body.They
generally attack and destroy infectious bacteria, viruses, molds and fungi.The immune system also plays a critical role in preventing cancer.The AIDS virus attacks and debilitates the immune system leaving the body
open to opportunistic illness, including cancer.The T-cell count is a standard means of measuring the progress of the
AIDS virus in the body.The viral
load, a newer and more accurate assessment, measures the amount of live AIDS
virus detected per milliliter of blood and is considered the most precise way to
gauge the severity of the condition.]

Mr. McWilliams went in for subsequent testing in early November 1998. On
November 20, 1998, Mr. McWilliams was notified by his doctor that his viral load
had increased by a factor of more than five thousand since August 1998. AIDS
doctors generally become concerned when the viral load exceeds 10,000 copies per
milliliter of blood. Mr. McWilliams' viral load had climbed from "Not
Detectable" (below 20 copies/ml) to 254,600 copies/ml.

On November 25, 1998, Mr. McWilliams filed an emergency motion for review of
the order setting his conditions of release before United States Magistrate
Judge Wistrich. The parties argued the motion on December 1, 1998, and December
3, 1998. On December 7, 1998, the Magistrate Judge issued an order denying Mr.
McWilliams' request.

Mr. McWilliams applied for review in the U.S. District Court. After briefing
and oral argument the court denied Mr. McWilliams’ application to modify in a
written order dated March 4, 1999 that instructed Mr. McWilliams to attempt to
identify a legal alternative and encouraged Mr. McWilliams and the government to
work together to develop an "appropriate accommodation."

Two weeks after the district court’s ruling, the National Academy of
Science Institute of Medicine issued its report, Marijuana and Medicine:
Assessing the Science Base (the "IOM Report").

Prior to petitioning the magistrate, Mr. McWilliams and his physicians had
already exhausted the legally available anti-nausea medications without result,
nothing changed with the district court’s order. On August 30, 1999, after
months of dialog, the government informed counsel for Mr. McWilliams that an
agreement regarding his use of medical marijuana was impossible.

On September 15, 1999, Mr. McWilliams again petitioned the district court
based on the changed circumstances presented by the IOM Report, the failure to
negotiate an "appropriate accommodation" with the government and his
continued failing health. The court denied his application without hearing on
September 22, 1999.

This appeal is brought pursuant to 18 U.S.C § 3145 and Rule 9(a) of the
Federal Rules of Appellate Procedure.

STATEMENT OF FACTS

In March, 1996, best-selling author and publisher Peter McWilliams was
diagnosed with both the Acquired Immuno-Deficiency Syndrome ("AIDS")
and AIDS-related Non-Hodgkin’s Lymphoma, the second most common form of
AIDS-related cancer. At that time, Mr. McWilliams’ viral load—the
measurement of copies of live virus per milliliter of blood—was 12,500
copies/ml. AIDS doctors typically become concerned when the viral load exceeds
10,000. Upon the advice of a specialist in the field of AIDS treatment, an
oncologist and a radiation oncologist, Mr. McWilliams embarked on an intensive
treatment regimen that included chemotherapy and radiation for the cancer and
the newly approved pharmaceutical AIDS treatment known as "combination
therapy." Combination therapy entails a mixture of chemically-derived
protease inhibitors and anti-viral medications and is designed to prevent the
spread of the AIDS virus. Combination therapy does not cure AIDS, in that it
does not remove the virus from the body. However, combination therapy does
represent a breakthrough in AIDS treatment as it is able to prevent the
production of additional copies of the AIDS virus and eliminates a large number
of the copies already present.

The combination therapy was able control the spread of AIDS in Mr.
McWilliams’ body, so that his viral load was, for the most part,
"undetectable" (a medical term of art indicating less than 20
copies/ml) from April 1996 until August 1998. Likewise chemotherapy and
radiation treatments sent his cancer into complete remission. The chemotherapy
and radiation treatment ended in October 1996. The AIDS combination therapy
continues to this day.

Mr. McWilliams’ survival through this time period depended on his ability
to use the chemotherapy, radiation and combination therapy medications. However,
his use of those medications would have been unsuccessful but not for
his discovery of the pallative effects of medical marijuana.

When Mr. McWilliams first began to take his chemotherapy and combination
therapy medications, he experienced violent nausea from the moment the chemicals
reached his stomach. His body rejected the medications before they could be
absorbed, thus preventing Mr. McWilliams from benefiting from their life-saving
action in his body. Mr. McWilliams’ physicians prescribed and, he dutifully
took, every state-of-the-art anti-nausea medication available by prescription to
help retain his chemotherapy and combination therapy medication. None of the
prescription antiemetics were able to prevent him from vomiting his chemical
therapies. Although he had not taken illegal drugs in over two decades (Mr.
McWilliams considers even caffeine to be too harsh a drug for his compromised
immune system), after consultation with his physicians, and his own personal
research, Mr. McWilliams tried smoking medical marijuana to control the nausea
that was preventing his pharmaceutical therapy regimen from being retained in
his body long enough for him to absorb it.

[Footnote
2:
Combination therapy is not available by injection, suppository, dermal patch or
any other delivery mechanism that bypasses the oral dose.If the nausea-producing pills can not be retained in the stomach, the
medication can not be absorbed.]

Mr. McWilliams discovered that smoking medical marijuana controlled his
vomiting where the other anti-nausea medications did not. The extremely rapid
onset afforded by smoking medical marijuana allowed Mr. McWilliams to respond to
the first wave of nausea and eased his stomach for several hours, long enough
for the chemicals that comprised his life-saving prescription medication to be
absorbed by his body. This pallative effect has been recognized by doctors,
scientists and researchers and is documented in the National Academy of Science
IOM Report.

As discussed above, Mr. McWilliams successfully lived with his AIDS for two
years as "little more than an inconvenience," due to his use of
"cutting-edge modern medical science and one ancient herb." Mr.
McWilliams’ conduct and alleged conduct related to his attempt to share his
experience with other patients forms the substance of the First Superceding
Indictment ("the Indictment") underlying this action.

After he was arrested pursuant to the Indictment in July 1998, Mr.
McWilliams spent four weeks in confinement at the Metropolitan Detention Center
in Los Angeles while his mother and brother attempted to raise the $250,000
bail. He was released on bond on August 19, 1998 subject to certain conditions
of release. During his time in jail, Mr. McWilliams did not receive his
combination therapy for the first nine days. Once treatment began again, he was
not given an anit-nausea medication that effectively controlled the violent
nausea that returned when the combination therapy resumed. Upon his release from
jail, Mr. McWilliams immediately reported to his physician for an examination.

Results of his blood test in August 1998, determined that the AIDS virus was
again multiplying and that it had reached 400 copies/ml. Due to the
discretionary condition of release "No marijuana use" imposed on Mr.
McWilliams, he and his physician renewed their efforts in an attempt to find an
effective anti-nausea medication. Again, all attempts failed. Mr. McWilliams was
unable to retain his combination therapy medication. His doctor explains,
"Since Mr. McWilliams stopped using marijuana at the end of last August,
his nausea has been uncontrolled . . . increased dosages of Marinol ® and
numerous other anti-nausea prescriptions . . . have failed to stop the
vomiting." McWilliams’ App. for Modification of Conditions of Release Exhibit
B: Letter from Dr. Daniel Bowers, M.D.

Unable to use medical marijuana as a pallative to moderate the
uncontrollable vomiting attendant to his combination therapy, Mr. McWilliams
could no longer check the multiplication of the AIDS virus in his body. As the
viral load increases, the body’s immune system becomes correspondingly weaker.
The risk of fatal opportunistic illness, such as pneumocystis pneumonia or
cancer, presents itself when the viral load exceeds 10,000 copies/ml. As
previously stated, when Mr. McWilliams’ viral load reached 12,500 in March
1996, he had already developed AIDS-related Non-Hodgkin’s Lymphoma. In October
1998, Mr. McWilliams’ physician discovered that due to his inability to retain
and absorb his combination therapy, his viral load had increased almost tenfold
to 3,789 copies/ml. By November 1998, Mr. McWilliams’ viral load had
skyrocketed by a magnitude of sixty, reaching 254,000 copies/ml.

Since the first hearing before the magistrate in December 1998, Mr. McWilliams’
has been unable to retain more than one out of every three doses of combination
therapy that he swallows. This partial retention is due to massive doses of
synthetic THC, available in prescriptive form as Marinol,® but does not begin
to approach the near-perfect retention that Mr. McWilliams was able to achieve
with the use of smoked medical marijuana for the two years prior to his arrest.
The result is that he is still not receiving the benefits of the combination
therapy, as such treatment requires the retention of five doses per day. In the
subsequent months, Mr. McWilliams’ health has deteriorated dramatically.
Presently, he sleeps eighteen to twenty hours per day, he is unable to do any
productive writing or publishing and is facing both personal and professional
bankruptcy. He is sometimes not even able to participate in the preparation of
his defense, due to his illness. Mr. McWilliams never leaves the house except
for medical and court appointments. He is confined to a wheel chair if he must
travel distances greater than half a block and he suffers from severe depression
and extreme anxiety over his worsening condition.

For five months, counsel for Mr. McWilliams negotiated with the government
in an attempt to reach "some appropriate accommodation," as suggested
by the district court. On August 30, 1999, the government closed the door on any
negotiated accommodation. Necessitating further court action if Mr. McWilliams
is to survive until trial.

On September 15, 1999, Mr. McWilliams presented these new circumstances and
this additional evidence before the District Court and requested an order from
the court removing the discretionary condition of release, "No Marijuana
Usage," and that it further direct that his use of smoked marijuana, in the
privacy of his home, to keep down his nausea producing pharmaceutical AIDS
medication and his personal possession of up to one ounce of marijuana in his
home not be grounds for revocation of his release or forfeiture of his bond when
such use and possession is pursuant to his doctor’s orders. That request was
denied and is the subject of this appeal.

ARGUMENT

I. MR. McWILLIAMS REQUIRES THE CONTINUED USE OF MEDICAL
MARIJUANA AS A MATTER OF NECESSITY.

a class of people with serious medical conditions for whom the use of
cannabis is necessary in order to treat or alleviate those conditions or
their symptoms; who will suffer serious harm if they are denied cannabis;
and for whom there is no legal alternative to cannabis for the effective
treatment of their medical conditions because they have tried other
alternatives and have found that they are ineffective, or that they result
in intolerable side effects.

Id. at *6. This court found, in overturning the district court’s
injunction, that the district court had ignored "a legally cognizable
defense that likely would pertain in the circumstances." Id. at *4.
In that case, the government sought unusual relief in the form of an injunction
to close the OCBC. Had the government "proceeded in the usual way, by
arresting and prosecuting those it believed had committed a crime . . . . [T]he
defendants would have been able to litigate their necessity defense under Aguilar
in due course." Id. at *4. This court remanded the case back to the
district court under orders to,

[R]econsider the appellants’ request for a modification that would
exempt from the injunction distribution to seriously ill individuals who
need cannabis for medical purposes. In particular, the district court is
instructed to consider in light of our decision in United States v.
Aguilar, the criteria for a medical necessity exemption, and, should it
modify the injunction, to set forth those criteria in the modification
order.

Id. at *6 (internal citations omitted).

Given this court’s recognition of the aforementioned class of persons, Mr.
McWilliams submits that he is a member of the class of persons described, though
not a member of the OCBC. Mr. McWilliams needs medical marijuana to
control the nausea that accompanies the life-saving pharmaceutical treatment
regimen for his AIDS. He simply cannot effectively control his vomiting with any
other medication. Unable to quiet his stomach, he cannot keep the combination
therapy dose down long enough to allow his body to assimilate the life-saving
medication contained therein. In the fifteen months since his arrest and release
on conditions so onerous

[Footnote
3:
If Mr. McWilliams is found to have violated a condition of his release he faces
incarceration in a highly contagious federal facility until trial and his
elderly, disabled mother and his brother will each have their homes forfeited.]

that he dare not use medical marijuana despite his lack of alternatives, Mr.
McWilliams has gone from a relatively healthy, fully-functioning member of
society with a productive publishing company and a viral load that was below
detectable levels (less than 20 copies of AIDS virus/ml of blood), to a
wheelchair-bound patient, unable to work, who sleeps up to twenty hours per day
and rarely leaves the house.

After only four months of not having access to medical marijuana, Mr.
McWilliams’ viral load rose to over 250,000 copies of virus/ml of blood. When
the viral load exceeds 10,000 copies/ml the risk of opportunistic infection is
pronounced. When Mr. McWilliams’ viral load was 12,000 copies/ml in March
1996, he had already developed the AIDS-related cancer known as Non-Hodgkin's
Lymphoma. Without medical marijuana, Mr. McWilliams cannot retain and assimilate
his pharmaceutical AIDS medication and without that medication he will die. This
fact has not been disputed in the lower court. Mr. McWilliams and his physician
have submitted uncontested evidence that Mr. McWilliams will suffer serious harm
if he is denied cannabis and that there is no legal alternative to cannabis for
the effective treatment of his medical condition. Mr. McWilliams has tried a
panalopy of available alternatives and has found them all ineffective. Only
medical marijuana works where the pharmaceutical remedies have failed.

In OCBC, this court took great pains to protect "the strong
public interest in the availability of a doctor-prescribed treatment that would
help . . . relieve the pain and suffering of a large group of persons with
serious or fatal illnesses." Id. at *4. Mr. McWilliams is a member
of this identified group and as such, urges this court to order that he be
exempt from the conditions of his release that prevent his use of medical
marijuana as a matter of medical necessity.

This court, in United States v. Aguilar, outlined four factors to
invoke the necessity defense: 1) the defendant was faced with a choice of evils
and chose the lesser evil, 2) the defendant acted to prevent imminent harm, 3)
the defendant reasonably anticipated a direct causal relationship between his
conduct and the harm to be averted, and 4) the defendant had no legal
alternative to violating the law. United States v. Aguilar, 883 F.2d 662,
693 (9th Cir. 1989), see alsoUnited States v. Dorrell, 758 F.2d
427, 430 (9th Cir. 1985), United States v. Contento-Pachon, 723 F.2d 691
(9th Cir. 1984). The medical necessity defense is a subset of the defense of
necessity and has been considered as a defense in both state and federal cases
involving medical marijuana. SeeUnited States v. Cannabis Cultivators’
Club, 5 F.Supp.2d 1086 (N.D. Cal 1998), United States v. Burton, 894
F.2d 188 (6th Cir. 1990), United States v. Randall, 104 Daily Wash. L.
Rep. 2249 (Sup. Ct. D.C. 1976), People v. Trippet, 56 Cal.App.4th 1532
(1997), Jenks v. Florida, 582 So.2d 676, 678 (Fla. App. 1 Dist. 1991), State
v. Hastings, 801 P.2d 563 (Idaho 1990), Florida v. Mussika, 14 F.L.W.
1 (Fla. 17th Cir. Ct, 1988), State v. Bachman, 595 P.2d 287, 288 (Hawaii
1979), State v. Diana, 604 P.2d 1312 (Wash.App. 1979); see also
Robin Isenberg, "Medical Necessity as a Defense to Criminal Liability: United
States v. Randall, Geo. Wash. L.Rev. Vol. 46, No. 2, p 273 (1978). Under the
Aguilar test, Mr. McWilliams’s meets all the factors sufficient to
establish the defense of necessity at trial, which he intends to do. However,
the conditions of Mr. McWilliams’ release that prevent him from using medical
marijuana have placed him in such a dire physical condition that he may not
survive to offer his defense at trial.

Mr. McWilliams has pursued other legal remedies to solve his current
dilemma. He is a named plaintiff in a pending class action lawsuit against the
federal government by patients seeking access to medical marijuana. SeeKuromiya
v. United States, 1999 WL 130613 (E.D.Pa.). In addition, Mr. McWilliams has
submitted a petition to reschedule marijuana to DEA. That petition was rejected
by Donnie Marshall, DEA Acting Administrator, after he determined that it was
substantially identical to the petition of Jon Gettman that has been awaiting
DEA action since 1995.

The very act of waiting for federal action threatens the life and severely
impacts the health of Mr. McWilliams. He is disconcerted by the rescheduling
odyssey experienced by the National Organization for the Reform of Marijuana
Laws ("NORML"). In 1972 NORML filed a petition to reschedule
marijuana. It did not receive a final ruling from DEA until 1992, and a final
decision on appeal until 1994, a total of 22 years. Alliance for Cannabis
Therapeutics v. DEA 15 F.3d 1131 (D.C. Cir. 1994). Further, the petitioners
had to go to the U.S. Court of Appeals for the District of Columbia Circuit on
four occasions to compel the DEA to take the appropriate action mandated by the
Controlled Substances Act ("CSA"). See, National Org. for
the Reform of Marijuana Laws v. Ingersoll, 497 F.2d 654 (D.C. Cir. 1974); National
Org. for the Reform of Marijuana Laws v. Drug Enforcement Admin., 559 F.2d
735 (D.C. Cir. 1977); National Org. for the Reform of Marijuana Laws v. Drug
Enforcement Admin. & Dep’t of Health Education & Welfare, No.
79-1660 (D.C. Cir. Oct. 16, 1980); and Alliance for Cannabis Therapeutics v.
Drug Enforcement Admin., 930 F.2d 936 (D.C. Cir. 1991). U.S. District Court
Judge Breyer noted in May 1998, while passing on this issue that,

The Court doubts whether a rescheduling petition is a reasonable
alternative for all seriously ill patients whose physicians have recommended
marijuana for therapeutic purposes . . . . Needless to say, it hardly seems
reasonable to require an AIDS, glaucoma, or cancer patient to wait twenty
years if the patent requires marijuana to alleviate a current medical
problem.

5 F. Supp.2d 1086, 1104 (N.D. Cal 1998).

For two years Mr. McWilliams was able to retain his pharmaceutical AIDS
medication as a direct result of medical marijuana’s anti-nausea properties.
He has always been a law-abiding person and only sought to violate the letter of
the federal statutory law when his very survival depended on it. As detailed
above, Mr. McWilliams is not presented with any legal alternative. While he is
confident that he will be vindicated at trial, he is deeply concerned that he
may not survive that long and implores this court to allow him to resume the
only means of therapeutic relief available to prolong his life. Mr. McWilliams
must he be exempted from the conditions of his release that prevent his use of
medical marijuana. His very life depends on it.

II. THE OFFICE OF NATIONAL DRUG CONTROL POLICY, THE SECRETARY
OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES AND DRUG ENFORCEMENT
ADMINISTRATION HAVE FAILED TO INFORM CONGRESS—AS REQUIRED BY LAW—ABOUT RECE
NT SCIENTIFIC AND MEDICAL FINDINGS REGARDING MARIJUANA’S MEDICAL
EFFECTIVENESS.

Mr. McWilliams expects the government to argue that Mr. McWilliams is in an
inferior position to Congress when it comes to determining the appropriate
scheduling of controlled substances. Further the government is also likely to
argue that Mr. McWilliams had alternatives to breaking federal statutory law,
such as petitioning the DEA or Congress for a reclassification of marijuana. In
addition to the arguments presented above, Congress has failed to remove
marijuana from Schedule I for a simple yet disturbing reason—those federal
agencies specifically bound by law to update Congress regarding medical and
scientific advances about controlled substances listed in the various schedules
have repeatedly failed to do so with regards to marijuana.

As detailed in Section III, Congress only tentatively listed marijuana in
Schedule I of the CSA, pending the development of further information and
knowledge about its physiological, pharmacological, psychological and societal
effects. Congress delegated to the Attorney General, the duty to add, remove or
transfer substances among the five schedules of the CSA. 21 U.S.C. § 811(a).
The Attorney General in turn delegated that responsibility to DEA pursuant to 21
U.S.C. § 871(a). In the twenty-nine years since marijuana was first listed in
Schedule I of the CSA, the understanding of the plant has increased
dramatically.

The IOM Report, detailed below, is only the latest installment in a series
of government studies providing evidence that marijuana is improperly listed in
Schedule I of the CSA. See National Research Council, An Analysis of
Marijuana Policy, Washington, D.C.: National Academy Press (1982)
("1982 IOM Report") ("Over the past 40 years, marijuana has been
accused of causing an array of anti-social effects including . . . provoking
crime and violence, . . . leading to heroin addition, . . . and destroying the
American work ethic in young people. [These] beliefs . . . have not been
substantiated by scientific evidence."); Marijuana: A Signal of
Misunderstanding; First Report of the National Commission on Marijuana and
Drug Abuse, 145-146 (1972) ("Shafer Commission Report") ("There
is little proven danger of physical or psychological harm from the experimental
or intermittent use of natural preparations of cannabis . . . . Existing social
and legal policy is out of proportion to the individual and social harm
engendered by the drug."); Mayor’s Committee on Marihuana, The
Marihuana Problem in the City of New York: Sociological, Medical, Psychological,
and Pharmacological Studies, Lancaster, PA: Jacques Cattel Press (1944)
("LaGuardia Commission Report") ("There [is] no direct
relationship between the commission of crimes of violence and marihuana . . .
and marihuana itself has no specific stimulant effect in regard to sexual
desires. The use of marihuana does not lead to morphine or cocaine or heroin addiction.");
Canal Zone Committee, The Panama Canal Zone Military Investigations,
(1925) ("Canal Zone Report") ("The influence of [marihuana] . . .
has apparently been greatly exaggerated . . . . There is no evidence . . . that
it has any appreciably deleterious influence on the individual using it.").
Still, Congress and DEA have failed to take action to adjust the federal law to
keep pace with changing information and understanding. This failure to act has
led to the present situation confronting Mr. McWilliams—if he obeys the
federal statutory law, as written, he dies. If he acts to preserve his life and
health with the only effective remedy available, he risks the forfeiture of his
elderly disabled mother’s home, the forfeiture of his brother’s home where
he currently resides and his pretrial incarceration in a facility with a high
risk of infection to his already compromised immune system. Mr. McWilliams is
being deprived of his most fundamental right, the right to life, because the law
has failed to respond to "evidence-based medicine" and "rigorous
scientific analysis." McCaffrey Testimony (June 16, 1999), supra.

The restoration and preservation of Mr. McWilliams's rights guaranteed by
the U.S. Constitution requires judicial intervention. This court offers its own
guidance as to the appropriate balance of power in the federal system.
"Though the reviewing court should not ignore the conclusions of Congress
about issues of constitutional law, it is the ultimate responsibility of the
courts to decide whether Congress has violated the Constitution." Information
Providers Coalition for Defense of the First Amendment v. Federal Communications
Commission, 928 F.2d 866, 869 (9th Cir. 1996).

A. Congress Is Precluded from Reaching an Accurate Assessment of the
Scientific and Factual Evidence Regarding the Medical Use of Marijuana
because It Is Routinely Misinformed by Federal Employees Who Vigorously
Oppose Any Change to Existing Law Even at the Expense of Scientific and
Medical Facts.

Mr. McWilliams is confident that Congress would have amended the federal
statutory scheme regarding marijuana had it been provided with accurate,
objective, scientific and medical evidence. Unfortunately, the facts about
marijuana are all too often obscured amidst an atmosphere of drug war rhetoric.
The misinformation campaign before Congress began with the very first federal
law regarding marijuana.

Urging Congress to pass the Marijuana Tax Act of 1937, Federal Bureau of
Narcotics Commissioner Harry Anslinger read various letters and press clippings
into the record among them a letter from a Colorado newspaper editor stating
that,

I wish I could show you what a small marijuana cigaret (sic) can do to
one of our degenerate Spanish-speaking residents. That’s why our problem
is so great; the greatest percentage of our population is composed of
Spanish speaking persons, most of whom are low mentally, because of . . .
racial conditions.

Hearings on H.R. 6385 Before the House Comm. on Ways and Means, 75th Cong.,
1st Sess. 32 (1937). Anslinger continued,

We find then that Colorado reports that the Mexican population there
cultivates on an average of 2 to 3 tons of the weed annually. This the
Mexicans make into cigarettes, which they sell at two for 25 cents, mostly
to white school students.

Id. at 32-33. Explaining further that,

There are 100,000 total marijuana smokers in the U.S., and most are
Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz
and swing, result from marijuana usage. This marijuana causes white women to
seek sexual relations with Negroes, entertainers and any others.

Id.. See Richard J. Bonnie and Charles Whitebread II, "The
Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of
American Marijuana Prohibition," Virginia Law Review Vol. 56, No. 6 (Oct.
1970); John C. McWilliams, The Protectors: Harry J. Anslinger and the Federal
Bureau of Narcotics, 1930-1962, Newark: University of Deleware Press, 1990.
The American Medical Association ("AMA") sent its legislative counsel,
Dr. William Woodward to oppose the Marihuana Tax Act, at hearings before the
Congressional committee that considered the issue. Woodward opposed the bill for
a number of reasons, noting particularly that the bill was not grounded in
objective medical fact and that, "In the first place, it is not a medical
addiction that is involved." Testimony of William C. Woodward, Taxation
of Marihuana, U.S. House of Representatives, Comm. on Ways and Means,
Hearings, May 4, 1937. Dr. Woodwards’ testimony was received by the hostile
chairman of the committee who angrily dismissed him saying,

If you want to advise us on legislation, you ought to come here with
some constructive proposals, rather than criticism, rather than trying to
throw obstacles in the way of something that the Federal Government is
trying to do.

Id. When the bill came to the floor of the House, there was only ninety
seconds of debate. The only question raised was whether the AMA had issued an
opinion. Rep. Vinson answered on behalf of the Ways and Means Committee,
"Yes, their Dr. Wentworth (sic) came down here. They support this bill 100
percent." Whitebread, "The Forbidden Fruit and the Tree of
Knowledge," supra. It is upon this type of misrepresentation before
Congress that all future misinformation is based.

The arguments for marijuana prohibition have changed little since the 1930s.
On April 1, 1999, Mr. McWilliams wrote a letter to ONDCP Director Gen. (Ret.)
Barry McCaffrey pointing out several statements made to Congress by McCaffrey
that were pointedly contradicted and proved erroneous by the IOM Report. Exhibit
A: Letter from Peter McWilliams to Gen. Barry McCaffrey, dated April 1,
1999. He asked Gen. McCaffrey to correct these statements so that Congress could
remove marijuana from Schedule I—where it clearly no longer belongs. Gen.
McCaffrey ignored Mr. McWilliams request. Indeed, at his next major appearance
before Congress he again failed to inform it of the complete findings in the IOM
Report. During the June 16, 1999 hearing before the House Government Reform and
Oversight Committee Subcommittee on Criminal Justice, Drug Policy and Human
Resources Gen. McCaffrey characterized the IOM Report in his written 28-page
report as follows,

[T]he most comprehensive summary and analysis of what is known about the
medical use of marijuana. The report emphasizes evidence-based medicine
(derived from knowledge and experience informed by rigorous scientific
analysis), as opposed to belief-based medicine (derived from judgment,
intuition, and beliefs untested by rigorous science). ONDCP is delighted
that the discussion of medical efficacy and safety of cannabinoids can now
take place within the context of science.

The IOM report concludes that there is little future in smoked marijuana
as a medically approved medication. Although marijuana smoke delivers THC
and other cannabinoids to the body, it also delivers harmful substances,
including most of those found in tobacco smoke. The long-term harms from
smoking make it a poor drug delivery system, particularly for patients with
chronic diseases. In addition, cannabis plants contain a variable mixture of
biologically active compounds, therefore they cannot be expected to provide
a precisely defined drug effect. Medicines today are expected to be of known
composition and quality. Even in cases where marijuana can provide relief of
symptoms, the crude plant mixture does not meet this modern expectation. If
there is any future in cannabinoid drugs, it lies with agents of more
certain, not less certain composition. The future of medical marijuana lies
on classical pharmacological drug development.

The study also provides a detailed analysis of marijuana’s
addictiveness. It concludes that marijuana is indisputably reinforcing for
many people. It states that a distinctive marijuana and THC withdrawal
syndrome has been identified, but it is mild and subtle compared to the
profound physical syndrome of heroin withdrawal. The study notes that few
marijuana users become dependent but those who do encounter problems similar
to those associated with dependence on other drugs. Slightly more than four
percent of the general population were dependent on marijuana at one time in
their life. After alcohol and nicotine, marijuana was the substance most
frequently associated with a diagnosis of substance dependence.

"The Drug Legalization Movement in America," Testimony of Barry R.
McCaffrey, Director, Office of National Drug Control Policy, Before the House
Government Reform and Oversight Comm. Subcomm. on Criminal Justice, Drug Policy
and Human Resources, June 16, 1999. This represents every bit of information
that Gen. (Ret.) McCaffrey has provided Congress regarding the 260-page report
on the results of the IOM’s eighteen-month study since its release in March
1999. While he acknowledges that marijuana is less addictive than heroin, a
Schedule I drug, Gen. McCaffrey failed to inform Congress that the IOM Report
also found marijuana less addictive than Valium® a drug listed in Schedule IV
of the CSA and less addictive than nicotine, a completely unscheduled drug. More
significantly, Gen. McCaffrey completely failed to mention the points from the
IOM Report detailed below that would lead Congress to the inevitable conclusion
that marijuana is improperly listed in Schedule I of the CSA, specifically that
marijuana does not have a high potential for abuse, that it has a currently
accepted medical use in treatment and that it may be used within an acceptable
safety range under medical supervision.

[Footnote
4: The IOM Report concludes in
its Executive Summary: a) that marijuana is medicine, b) marijuana is not a
gateway drug, c) there is currently no alternative to smoked marijuana for some
patients, d) patients who need medical marijuana should be able to obtain
approval within 24 hours, e) if marijuana is addictive at all it is only mildly
so and any withdrawal symptoms are minimal, and f) there is no reason to believe
that medical marijuana will increase recreational marijuana use.IOM Report, ES.4 - ES.9. seeinfra.]

As Gen. McCaffrey’s testimony was given under oath, Congress reasonably
expected to be provided with the truth, the whole truth and nothing but
the truth.

Faced with such misinformation regarding marijuana Congress has been, and
continues to be led to legislate based on inaccurate or missing data. In October
1998, six months before release of the IOM Report that was supposed to answer
the question of marijuana’s effectiveness as medicine, Congress declared in a
Sense of Congress resolution that marijuana has no redeeming medicinal value.
Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub.
L. No. 105-277, 112 Stat. 2681 (October 21, 1998). Such a conclusion simply
cannot stand in the face of objective, empirical, scientific and medical
evidence. However the polarity regarding reclassification of marijuana under the
federal drug control scheme continues to distort the facts. During the same June
16, 1999, hearing entitled, "The Pros and Cons of Drug Legalization,
Decriminalization and Harm Reduction"

[Footnote
5: Rep. Mark Souder took exception to
the very concept of a hearing on the pros and cons of legalization saying, “We
don’t hold hearings on the pros and cons of rape, or the pros and cons of
child abuse, or the pros and cons of racism.The advocates of legalization are responsible for blood in my community,
and they are as responsible for this as rapists.”]

before the House of Representative Committee on Government Reform’s
Subcommittee on Criminal Justice, Representative Barr asked Donnie Marshall,
Acting Administrator of the DEA, whether Marshall saw any real difference
between someone advocating drug legalization and someone advocating pedophilia.
Marshall said that he saw "no real difference." Christopher Wren,
"Opposing Camps Square Off at Congressional Hearing about Drug
Legalization," New York Times June 20, 1999. Regrettably, this is
the same federal official tasked with the ultimate responsibility of evaluating
requests to reschedule marijuana and the person who summarily rejected Mr.
McWillliams’ Petition for Rulemaking.

B. The Secretary of Health and Human Services Has Failed To Properly
Inform Congress Regarding the Current Findings on the Health Effects of
Marijuana.

Since 1984, the Secretary of Health and Human Services (the
"Secretary") has been required by law to submit a report to Congress
every three years, "describing current research findings made with respect
to drug abuse, including current findings on the health effects of
marihuana." 42 U.S.C. § 290aa-4. The first report was filed in 1984. The
second, covering research from 1983 to 1986, was submitted in 1987 and the
third, summarizing research from 1986 to 1989, was filed in 1991. The Secretary
has not filed a report since 1991. This is particularly significant for two
reasons.

First, beginning in 1990, several important discoveries and research
developments led to a greatly enhanced understanding of the physiological
mechanism of cannabinoids in the brain. A THC receptor has been identified in
the body. The receptor is only stimulated by THC or an analogous chemical known
as Anandamine that is naturally produced by the body to modulate pain, regulate
immune system functioning, enhance balance and a variety of other functions that
are still being studied. This indicates the natural manner in which THC produces
its healing effects in the body. See Herkenham, M et. als.,
"Cannabinoid receptor localization in the brain," Proceedings of
the National Academy of Sciences of the United States of America, 87:
1932-1936 (1990); Devane, WA et. als., "Isolation and structure of a brain
constituent that binds to the cannabinoid receptor," Science 258:
1946-1949 (1992). These discoveries and developments have answered many of the
perennial questions regarding the physiological and pharmacological effects of
medical marijuana. The results of this research alone, if reported to Congress,
are significant enough to warrant an adjustment in marijuana’s classification
under the CSA.

However, these important discoveries become more pronounced in light of the
relevant recent history. Since marijuana was first targeted by federal
legislation, lawmakers have inquired about the way it effects the body and the
mechanisms that produce the observable results. These questions left unanswered
led DEA Administrator Jack Lawn to overturn the rescheduling recommendation of
DEA Administrative Law Judge Francis Young—who after conducting lengthy
hearings found that, "In strict medical terms marijuana is far safer than
many foods we commonly consume." In the Matter of Marijuana Rescheduling
Petition, Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law
and Decision of Administrative Law Judge, U.S. DEA Docket No. 86-22 at 58 (Sept.
6, 1988). In recommending that marijuana be removed from Schedule I, ALJ Young
found that, "Marijuana, in its natural form, is one of the safest
therapeutically active substances known to man." Id. at 58-59. He
concluded that,

The evidence in this record clearly shows that marijuana has been
accepted as capable of relieving the distress of great numbers of very ill
people, and doing so with safety under medical supervision. It would be
unreasonable, arbitrary and capricious for DEA to continue to stand between
those sufferers and the benefits of this substance in light of the evidence
in this record.

Id. at 68. Administrator Lawn rejected ALJ Young’s recommendation that
marijuana be rescheduled because, "the chemistry, toxicology, and
pharmacology of marijuana is not established." 54 Fed. Reg. 53,767, 53,783
(1989). Lawn’s decision was upheld in A.C.T. v. DEA, 930 F.2d 936 (D.C.
Cir. 1991). These questions raised by Administrator Lawn have now all been
answered by detailed research—in favor of marijuana’s medical effectiveness,
mild addictive potential, and relative safety for use under medical supervision—yet
the Secretary has failed to provide Congress with this significant and relevant
information in direct violation of her statutorily mandated duty.

Unlike the above mentioned litigation that revolved around a petition to
reschedule marijuana first filed in 1972, Mr. McWilliams maintains that had
ONDCP, DEA and HHS complied with their statutorily mandated duties and had
provided accurate objective information, Congress would have concluded that
marijuana is improperly listed in Schedule I of the CSA. Indeed the IOM Report
is only a comprehensive summary of relevant scientific and medical evidence that
should have been made available to Congress by these agencies years ago. It is
the responsibility of the appropriate agencies, in this case ONDCP, DEA and HHS,
and not patients like Mr. McWilliams, to keep pace with changes in the law and
circumstances. This act of waiting for administrative action is a
life-threatening experience for Mr. McWilliams and absolutely unnecessary given
the longstanding scientific knowledge about the health and medical effects of
marijuana and the current state laws.

Mr. McWilliams has little doubt that were Congress routinely provided with
accurate, objective, scientific and medical information regarding the medical
properties of marijuana, it would have acted to remove marijuana from Schedule I
some time ago. However, the current politicized climate of rhetoric,
misinformation and failed responsibility that has stymied any credible
evaluation of marijuana’s therapeutic potential by Congress is rapidly
hastening the death of Mr. McWilliams and doubtless thousands of others.

III. MARIJUANA IS IMPROPERLY LISTED IN SCHEDULE I OF THE
CONTROLLED SUBSTANCES ACT.

While Mr. McWilliams could provide this court with mountains of evidence
regarding marijuana’s medical effectiveness. However he need only refer to one
comprehensive document the—IOM Report—to conclusively prove that had
Congress been giving accurate information concerning the scientific
understanding of marijuana, it would no longer be listed in Schedule I of the
CSA. This court, which was fortunately provided with more information that
Congress, has already ruled as much.

This court’s ruling in OCBC, discussed above, recognizes that
marijuana has an actual accepted medical use and that it is needed by a class of
persons with serious or fatal illnesses. OCBC, supra. Still,
marijuana is listed in Schedule I of the CSA. 21 U.S.C. § 812 (c).
"Schedule I drugs are subject to the most severe controls . . . they are
deemed to be the most dangerous substances, possessing no redeeming value as
medicines." Alliance for Cannabis Therapeutics v. Drug Enforcement
Administration, 930 F.2d 936 (D.C. Cir. 1991). Three findings are required
to list a drug or substance in Schedule I of the CSA. "[A] drug or
substance may not be placed in any schedule unless the findings required for
such schedule are made with respect to such drug or other substance." 21
U.S.C. § 812(b). The findings required to list a substance in Schedule I are:

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in
treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other
substance under medical supervision.

Id. at § 812(b)(1). Unless all three pillars are present, a substance
cannot legally be listed in Schedule I of the CSA. In the case of marijuana,
none of the three requirements is met.

The legislative history surrounding passage of the CSA suggests that
Congress did not consider the medicinal utility of cannabis in drafting that act
in 1970. Congress was advised by Roger Egeberg, the Assistant Secretary for
Health and Scientific Affairs, that, "Some question has been raised whether
the use of [marijuana] produces ‘severe psychological or physical dependence’
as required by a schedule I or even a schedule II criterion." U.S. Code
Cong. & Admin. News (1970) 4630. Egeberg recommended that, "Since there
is still a considerable void in our knowledge of the plant and effects of the
active drug contained in it, our recommendation is that marijuana be retained
within schedule I at least until the completion of certain studies now
underway." Id.

[Footnote
7: The results of this eighteen-month
study, known as the Shafer Commission—named for Raymond Shafer, the former
Republican Governor of Pennsylvania who was hand-picked by President Nixon to
chair the commission—concluded that marijuana was unjustly demonized because
it symbolized the “counterculture” not because it had any harmful
physiological effects.It found
that existing social and legal policy is out of proportion to the individual and
social harm engendered by marijuana.The
Commission unanimously concluded that marijuana use is not so grave a problem
that individuals who smoke marijuana or possess it for that purpose, should be
subject to criminal procedures.Marijuana:A Signal of Misunderstanding; First Report of the National Commission
on Marijuana and Drug Abuse, 145-146 (1972).]

The recent release of the National Academy of Science IOM Report, as well as
the legislative action in California and in five other states in the Ninth
Circuit, combined with this court’s ruling in OCBC based on empirical
medical and scientific evidence conclusively demonstrates that whatever the
reasonableness of the tentative determination made by Congress in 1970 to list
marijuana in Schedule I, the requisite findings no longer accurately describe
marijuana.

A. Marijuana Does Not Have a High Potential for Abuse.

In the wake of the passage of Proposition 215 in California and Proposition
200 in Arizona, Office of National Drug Control Policy Director Gen. (Ret.)
Barry McCaffrey commissioned the National Academy of Science Institute of
Medicine to study the medical effectiveness of marijuana.

[Footnote
8: The need for the IOM Report was
made more pronounced by the failure of the Secretary of Health and Human
Services to provide any of the statutorily-mandated triennial reports
“describing current . . . findings on the health effects of marijuana” since
1991.42 U.S.C. § 506(b).See discussion infra.]

The eighteen-month study culminated in the release of the IOM Report in
March 1999. During a recent Congressional hearing, Gen. (Ret.) McCaffrey praised
the IOM Report as quoted above.

The IOM’s thorough treatment of the medical evidence led to conclusions in
the IOM Report demonstrating that marijuana is improperly listed in Schedule I
of the CSA based on the failure of all three listing criteria. The IOM Report
discounts the actual abuse potential presented by marijuana.

The IOM Report found that, "Although few marijuana users develop
dependence, some do. . . . A distinctive marijuana withdrawal syndrome has been
identified, but it is mild and short-lived." IOM Report at ES.7. This
withdrawal syndrome "is observed under a narrower range of conditions than
with benzodiazepines, opiates, cocaine or nicotine" and the symptoms
"appear to be mild compared to opiates or benzodiazepines, such as diazepam
(Valium®)." Id. at ES.3. That is, marijuana is mildly addictive in
some persons, but the dependence and withdrawal is less severe than that
observed for the opiates, Valium® or even nicotine.

The IOM Report also laid to rest any concerns that marijuana is a
"gateway" drug, leading users on to harder drugs such as heroin or
cocaine. "There is no conclusive evidence that the drug effects of
marijuana are causally linked to the subsequent abuse of other illicit
drugs." Id. at ES.7. Not surprisingly, the IOM Report found that,
"In fact, most drug users begin with alcohol and nicotine before marijuana—usually
before they are of legal age." Id.

These results answer the question posed to Congress in 1970 whether
marijuana "produces ‘severe psychological or physical dependence’ as
required by a schedule I or even a schedule II criterion." Supra
U.S. Code Cong. & Admin. News (1970) 4630. Clearly and unequivocally it does
not, as evidenced by the independent assessment of the well-respected National
Academy of Science Institute of Medicine, in its report commissioned, financed
and subsequently praised by the ONDCP.

B. Marijuana Has a "Currently Accepted Medical Use" in the
State of California and in Other States.

Despite being listed in Schedule I of the CSA, there is a large body of
evidence demonstrating that marijuana has an accepted medical use. This is all
the more remarkable considering marijuana’s prohibited status.

After reviewing all the available data, conducting interviews and holding
public hearings, the IOM researchers reached the undeniable conclusion that,
"Scientific data indicate the potential therapeutic value of cannabinoid
drugs, primarily THC, for pain relief, control of nausea and vomiting, and
appetite stimulation." IOM Report at ES.5. The IOM Report, while cautioning
against the potentially harmful effects of inhaling smoke, acknowledged that,
"Until a non-smoked, rapid-onset cannabinoid drug delivery system becomes
available . . . there is no clear alternative for people suffering from chronic
conditions that might be relieved by smoking marijuana, such as pain or AIDS
wasting." Id. at ES.9.

Mr. McWilliams is precisely the type of patient the IOM Report discusses in
these conclusions. He is suffering from a chronic, life-threatening, yet
treatable condition. The unbearable paradox is that the only palliative
medication that makes Mr. McWilliams’ retention of his life-saving medication
possible is medical marijuana—a substance that the federal government
erroneously maintains has no redeeming medical properties.

2. Medical Evidence Demonstrates a Currently Accepted Medical Use
for Marijuana.

Mr. McWilliams’ experience alone is sufficient to demonstrate that, at the
very least, marijuana has a definite, predictable and consistent therapeutic
effect. Medical marijuana controls the nausea and subsequent vomiting that
otherwise precludes Mr. McWilliams from treating his AIDS with the
state-of-the-art pharmaceutical treatment regimen. This fact alone would be
sufficient to call marijuana’s scheduling into question. However, Mr.
McWilliams’ experience is far from unique.

This court in OCBC, recognized the class of persons with a
demonstrable "need for cannabis in order to treat . . . debilitating and
life threatening conditions." OCBC, 1999 W.L 705099, at *4. OCBC
members and their doctors submitted declarations regarding this need and this
court found it noteworthy that such persons and professionals came forward,
"despite their very real fears of criminal prosecution." Id.
There are doubtless thousands, if not millions, of others who could be helped by
the medical use of marijuana, but instead suffer untreated because of their
"very real fears." Forcing patients like Mr. McWilliams—who are
already suffering and quite likely fighting for their lives—to break federal
statutory law and risk prosecution with only the chance for a successful medical
necessity defense to protect them from federal prison is cruel, unjust and
counter to the principles embodied in the U.S. Constitution and the CSA.

3. Recent State Initiatives in Six Ninth Circuit States Demonstrate
a Currently Accepted Medical Use for Marijuana.

In November 1996, California, the most populous state in the nation, enacted
Proposition 215 by popular initiative. The initiative, codified as California
Health & Safety Code § 11362.5 ("Cal. H&S § 11362.5")
declares its purpose to ensure that "seriously ill Californians have the
right to obtain and use marijuana for medical purposes where that medical use is
deemed appropriate and has been recommended by a physician." Cal. H&S
§ 11362.5(a). Five other states in the Ninth Circuit passed similar legislation
by popular initiative in November 1998.

These initiative measures all passed despite intense negative campaigning
and spending by the federal government.

Implicit in each of these measures is a determination by the majority of
voters in the various states that marijuana has a medical utility. In litigation
regarding a petition to reschedule marijuana in the 1970s and 1980s, the Court
of Appeals for the D.C. Circuit wrestled with the question of how to determine
"currently accepted medical use in treatment in the United States" for
a Schedule I controlled substance. Alliance for Cannabis Therapeutics v. Drug
Enforcement Administration, 930 F.2d 936 (D.C. Cir. 1991). Finding no
guidance in the legislative history beyond the plain language of the term, the
court accepted the DEA Administrator’s interpretation of the phrase. The
Administrator, in overruling the findings of a DEA Administrative Law Judge,
applied an eight-part test to determine whether a drug or substance has a
"currently accepted medical use." Id. at 938. Neither the
Administrator, nor the Administrative Law Judge, nor the A.C.T. court
contemplated the situation presently before this court, namely the direct
unequivocal acceptance of marijuana as medicine by six states. Nor does the
legislative history suggest that Congress considered such a situation when it
enacted the CSA.

The situation here requires no great imagination or statutory construction
on the part of the court. The plain meaning of the term "currently accepted
medical use in treatment in the United States" must control. Connecticut
National Bank v. Germain, 112 S.Ct. 1146, 1149, (1992) (when words of a
statute unambiguous judicial inquiry is complete); Ardestani v. Immigration
and Naturalization Service, 112 S.Ct. 515, 520 (1991) (strong presumption
that plain language of statute expresses congressional intent); United States
v. Behnezhad, 907 F.2d 896, 898 (9th Cir. 1990) (courts should rely on plain
meaning when language clear). The simple fact being the position that marijuana
has no "currently accepted use in treatment in the United States" is
not tenable in light of the recent legislation in California and the other
states. A substance cannot simultaneously have an accepted use in treatment—as
marijuana does in the six western states—and be properly listed as a Schedule
I controlled substance.

C. Marijuana May Be Used Within an Acceptable Safety Range Under
Medical Supervision.

The IOM Report identifies marijuana’s actual medical value and
demonstrates that a relative margin of safety exists for its use under medical
supervision.

While the IOM Report described smoking the marijuana plant as a
"crude" delivery system for the beneficial cannabinoids, several of
its conclusions provide a new perspective on the tentative Congressional
determination in 21 U.S.C. § 812 (b)(1) that, "There is a lack of accepted
safety for use of [marijuana] under medical supervision,"

The IOM Report concluded that:

[E]xcept for the harms associated with smoking,

[Footnote
11:
The report explains, “Marijuana smoke, like tobacco smoke, is associated
with increased risk of cancer. . .[a]lthough. . . proof that habitual
marijuana smoking does or does not cause cancer awaits the results of
well-designed studies.”IOM Report ES.6.Alternate means of delivery of whole marijuana, such as ingestion, the
vaporization of cannabinoids (vaporizers) and the use of medical marijuana
resin (“MMR” also known as hashish) eliminate or significantly reduce the
amount of smoke inhalation necessary to achieve a therapeutic dose.]

the adverse effects of marijuana use are within the range of effects
tolerated for other medications.

* * *

[F]or certain patients, such as the terminally ill or those with
debilitating symptoms, the long-term risks are not of great concern.

IOM Report ES.6, ES.8. These well-reasoned and thoroughly researched
conclusions demonstrate that there is a margin of accepted safety for use of
marijuana under medical supervision given the current understanding of marijuana
in a medical context.

Additionally the IOM Report countered the argument that the medical use of
marijuana would increase its recreational use among the general population.
"The existing date are consistent with the idea that this would not be a
problem if the medical use of marijuana were as closely regulated as other
medications." Id. at ES.7.

According to the plain language of the CSA, marijuana is not properly listed
in Schedule I.

IV. CALIFORNIA AND THE OTHER STATES RETAIN THE RIGHT TO
DEFINE AND REGULATE THE PRACTICE OF MEDICINE AS AN EXPRESSION OF THEIR
SOVEREIGNTY.

States have historically had the power to regulate the practice of medicine
as a means to protect the health and safety of their citizens. The United States
Supreme Court has long observed that right,

[W]e have consistently recognized the legitimate state pursuit of such
interests as compatible with the Commerce Clause, which was never intended
to cut the States off from legislating on all subjects relating to the
health, life, and safety of their citizens.

General Motors Corp. v. Tracy, 117 S.Ct. 811, 828 (1997); Raymond
Motor Transportation, Inc. v. Rice, 434 U.S. 428, 443 (1978) (state
regulations enacted to promote public health and safety are accorded particular
deference); Linder v. United States, 268 U.S. 5, 18 (1925)
("obviously, direct control of medical practice in the states is beyond the
power of the federal government"). This language was echoed just last year
by the U.S. Department of Justice in response to an inquiry by U.S. Senator Ron
Wyden regarding federal intervention in Oregon after passage of an assisted
suicide initiative there. "There is no evidence that Congress, in the CSA,
intended to displace the states as the primary regulators of the medical
profession, or to override a state’s determination as to what constitutes
legitimate medical practice," wrote L. Anthony Sutin, Acting Assistant
Attorney General, in denying Sen. Wyden’s request for intervention. Letter
from L. Anthony Sutin, Acting Assistant Attorney General, to Senator Ron Wyden,
dated June 5, 1998.

[Footnote
12: Despite Congress’ disgust that
physicians in Oregon were prescribing lethal doses of controlled substances
pursuant to the state Death with Dignity Act, the only federal recourse was to
enact the Assisted Suicide Funding Restriction Act, 42 U.S.C.§ 14401 et. seq., that restricts the use of federal funds to
pay for items and services which are used to cause or assist suicide or
euthanasia.]

California and her five sister states have acted to protect the health and
safety needs of patients in their states, through the most responsive form of
lawmaking available, the popular initiative. Those actions reflect a value
judgment on the part of the voters that the health benefits afforded by the
medical use of marijuana outweigh any real or perceived risks to public safety. SeeUnited States v. Oakland Cannabis Buyers Cooperative, _ F.3d _ , 1999 WL
705099 (9th Cir. 1999) ("OCBC has identified a strong public interest in
the availability of a doctor-prescribed treatment that would help ameliorate the
condition and relieve the pain and suffering of a large group of persons with
serious or fatal illnesses."). The inquiry ends with the state action, not
with a determination by Congress or DEA.

CONCLUSION

Mr. McWilliams must be allowed to resume his use of medical marijuana as a
matter of dire medical necessity. He meets all four of the conditions required
for the necessity defense as described by this court in Aguilar. Mr.
McWilliams is faced with the choice of breaking federal statutory law or being
left unable to assimilate his medication, he wishes to act to avoid an imminent
and recurring harm and to ensure his survival through trial. Medical marijuana
is proven to alleviate Mr. McWilliams’ condition and he has no legal
alternative to violating the law.

For the foregoing reasons, Mr. McWilliams respectfully urges this court to
enter an order exempting him from the conditions of his release that prevent him
from using medical marijuana.